ORDER

Date : 13-03-2020 Heard Mrs. R. Choudhury, learned counsel for the petitioner/ appellants and Mrs.

P. Bhattacharya, learned counsel for the respondents.

2. The respondent nos.1 and 2 are the plaintiffs in T.S. No.24/2015. There are five defendants in the suit, viz., respondent no.3 (defendant no.1) and the petitioners/ appellants herein (defendants No.2 to 5). The suit was for declaration of right, title and interest on the respondent no.2 over the suit land, for eviction of the respondent no.3 and the petitioners/appellants, for khas possession, etc. The said suit was disposed of by an ex parte decree dated 31.03.2016. The petitioners/ appellants had filed an application under Order IX Rule 13 CPC against the said ex parte decree, which was registered and numbered as Misc. (J) Case No.10/2017. The said application was accompanied by a petition under Section 5 of the Limitation Act, 1963, which was registered and numbered as Misc. (J) Case No.9/2017. The said Misc. (J) Case No.9/2017 was rejected by order dated 26.05.2017 by the learned Civil Judge, Lakhimpur, North Lakhimpur and consequently, Misc. (J) Case No.10/2017 under Order IX Rule 13 CPC was also dismissed. The said two orders are the subject matter of challenge in F.A.O. No. 53/2017, filed under Order XLIII Rule 1(c) CPC. In the meantime, the decree passed in the said suit was put to execution, wherein the petitioners/ appellants had filed an objection under Section 47 CPC, which was rejected by order dated

13.06.2017, which is assailed in C.R.P. (I/O) No. 396/2017. Hence, for the sake of convenience both matters have been heard analogously and both matters are disposed of by this common order.

3. The learned counsel for the petitioners/appellants has referred to the LCR, which was called for in connection with F.A.O. 53/2017. It is submitted that summons of the suit was issued by order dated 13.11.2015 and the case was fixed for service report on 14.12.2015, on which date, the petitioners/ appellants appeared along with the respondent No.3 by engaging a common counsel and by filing petition no. 1207/2015, they had prayed for another date for filing their written statement. By referring to the said petition, it is submitted that the respondent no.3 herein was taking steps in the suit. It is submitted that the next date of the suit was fixed on 20.01.2016 and on the said date, their counsel prayed for further time to file written statement and the case was fixed on 23.02.2016. However, on 23.02.2016, the respondent no.3 appeared separately by engaging another counsel and behind the back of the petitioners/ appellants, by filing petition No.88/2016, he had admitted the claim of the respondent nos. 1 and 2 and prayed to exonerate him from the suit. Accordingly, the learned trial Court by order 23.02.2016, allowed the said petition filed by the respondent no.3 and held that the respondents No.1 and 2 will get relief against respondent no.3 as prayed for which would be reflected at the time of passing judgment. It is submitted that another counsel not on record was engaged by respondent No.3, and by filing petition no. 89/2016 dated 23.02.2016, prayed for an adjournment and the next date of the suit was fixed on 04.03.2016 for filing written statement.

4. It is submitted that an Assam bandh call was made by various organizations on 04.03.2016 and as there was road blockade the petitioners/ appellants could not come to Court and, as such, their counsel had filed petition no.120/2016 and prayed for one date, but on the ground that 90 days’ statutory period for filing written statement had elapsed, the said petition was rejected and the ex parte hearing of the suit was fixed on 10.03.2016. On the said date, the respondents No.1 and 2 had filed evidence-on-affidavit of 4 (four) P.W.’s and the learned trial Court closed the evidence and fixed the case on 28.03.2016. Accordingly, argument of the respondent nos. 1 and 2 was heard and the case was fixed for judgment on 31.03.2016